Constitutional Challenges to Vermont’s Proposed Genetically Engineered Food Labeling Law (H.722)
27 Pages Posted: 6 Aug 2012 Last revised: 16 Jul 2014
Date Written: April 7, 2013
In Spring 2012, the Vermont legislature contemplated a bill (H.722) that would "provide that food is misbranded if it is entirely or partially produced with genetic engineering and it is not labeled as genetically engineered." Believing that if Vermont enacted H.722, stakeholders in the biotech and processed food industries would pursue legal action, legislators placed the passage of the bill on hold. Vermont legislators proposed similar bills in 2013. The Connecticut legislature considered a similar bill in 2012 and also tabled it following the threat of lawsuit. On November 6, 2012, the California ballot included a voter initiative that would require labels on genetically engineered food products. In Spring 2013, several state legislators are considering similar bills. This Note describes H.722 (the bill proposed in 2012, not the current proposed bill) and analyzes the potential challenges to it. As written, H.722 is vulnerable to numerous challenges under the "dormant" commerce clause, preemption, and compelled commercial speech. This Note will analyze the chances that a mandatory GE food labeling law will be upheld in the Second Circuit Court of Appeals, giving special attention to issues previously addressed in International Dairy Foods Association v. Amestoy, in which the Second Circuit considered a previous Vermont statute that mandated labels on products containing milk that was produced on farms using rBST, a synthetic growth hormone. The analysis leads to concrete suggestions for states that wish to draft GE food labeling laws that are better insulated from constitutional challenges.
Keywords: food labeling laws, Genetically Engineered food, consumers' right to know
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